Protecting the freedom of association and collective bargaining for Kenya senior schools' non-teaching staff

The Constitution of Kenya, 2010, establishes a clear framework for the protection of workers and their organisations. Article 41 guarantees every person the right to fair labour practices and specifically provides that every worker has the right to form, join or participate in the activities and programmes of a trade union.

Article 36 further guarantees the freedom of association, including the right to form, join or participate in an association of any kind, while also protecting an individual from being compelled to join an association.

These are not privileges granted by a school Principal, a Board of Management, a Head of Institution or any other employer representative. They are constitutional rights. Consequently, senior schools must provide an environment in which non-teaching staff can freely exercise their lawful labour rights without intimidation, interference, discrimination or institutional gatekeeping.

Whereas learners in every senior school in Kenya are members of a vibrant students' council that actively advocates for their rights and welfare, including having their president representing them in the school Board of Management, and whereas all teachers are members of the Kenya Union of Post-Primary Education Teachers (KUPPET), which actively advocates for their labour rights and welfare while conducting its activities openly in all schools, it is therefore discriminatory to deny non-teaching staff the same rights.(Education News Kenya — https://educationnews.co.ke/news/protecting-the-freedom-of-association-and-collective-bargaining-for-kenya-senior-schools-non-teaching-staff)

There is also a constitutional and legal duty by every employer, in this case being the BOM, to obey and execute the Legal Notice gazetted by the Labour Cabinet Secretary authorising trade union dues deductions and remittances. A public officer who deliberately ignores a government legal notice shouldn't hold any public office. 

Therefore, any employer, including a school Board of Management, who has employed five or more members of the trade union, having received the signed check-off, must proceed to deduct and remit union dues in accordance with the law.

Another serious evil that happens in senior schools every day is the arbitrary termination of non-teaching staff without following legally acceptable procedures, with the school principal being the accuser and the chief witness, then sitting in the BOM meeting to listen to the case, determine the outcome, then proceed to execute the BOM decision. There cannot be greater unfairness and injustice than this.

The Employment Act, the Labour Relations Act, as well as the Fair Administrative Action Act, clearly provide that every person has the right to a fair administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair, including the right of representation by a friend or a trade union official at every stage. Therefore, the role of the trade union in representation of employees in all disciplinary processes cannot be overemphasised.

Therefore;

Where an employer or person acting on behalf of an employer deliberately attempts to discourage employees from joining, supporting or participating in a lawful trade union, such conduct raises serious questions under the constitutional protection of freedom of association and fair labour practices.

A Principal or Board of Management should not intimidate employees because of their union membership; discourage employees from joining a lawful trade union; obstruct lawful union activities; threaten or disadvantage employees because they participate in union activities; create an environment designed to weaken a legitimate workers' organisation; or interfere with employees' choice of trade union.

The principle is straightforward: the choice of a trade union belongs to the worker, not to the employer. The Employment and Labour Relations Court has recognised that an employee's right to join and participate in a union is a basic constitutional right and that employers or third parties should not improperly restrict that right.

A particularly serious concern arises where school management allegedly attempts to determine which trade union non-teaching staff should belong to. An employer's role is not to select a union on behalf of employees.

Article 36 protects the individual's freedom of association, while Article 41(2)(c) specifically protects the worker's right to form, join or participate in trade-union activities. Where workers have independently and voluntarily joined a lawful trade union, any attempt by management to prevent them from exercising that choice should be examined against these constitutional protections.

The workplace should be a place of employment, not a marketplace in which management chooses the workers' union.

Section 54(1) of the Labour Relations Act provides that: An employer, including an employer in the public sector, shall recognise a trade union for purposes of collective bargaining if that trade union represents the simple majority of unionisable employees. Section 54(3) further requires the employer and trade union to conclude a written recognition agreement recording the terms upon which the union is recognised.

This is significant for senior schools. Where the relevant non-teaching employees are unionisable, and a trade union has attained the statutory simple-majority threshold, recognition is not merely a matter of personal preference by a Principal or individual Board members. The law provides a mechanism for resolving a dispute concerning recognition: the matter may proceed to conciliation and, if unresolved, to the Employment and Labour Relations Court.

There is an important legal distinction between union membership/representation and employer recognition for collective bargaining. The Employment and Labour Relations Court has stated that membership gives a union the relationship necessary to represent its members, while recognition is the relationship between the union and employer for purposes of collective bargaining.

Another recent Kenyan decision similarly noted that a union may represent its members even where a recognition agreement has not yet been concluded, although collective bargaining requires recognition. Therefore, a Principal or BOM should not treat the absence of a recognition agreement as permission to disregard employees' lawful union membership.

Collective bargaining is expressly protected by the Constitution. Article 41(5) provides that: "Every trade union, employers' organisation and employer has the right to engage in collective bargaining."

Once the statutory requirements for recognition have been satisfied, recognition exists specifically for the purpose of collective bargaining. Section 54 describes recognition as being "for purposes of collective bargaining." Consequently, an employer cannot reasonably treat recognition as an empty administrative formality and then refuse to engage in the collective bargaining process.

For senior-school non-teaching staff, this makes CBA negotiations an important mechanism for addressing matters such as remuneration, allowances, working conditions, occupational safety, workload, leave and welfare, career progression, working equipment, employment benefits and other terms and conditions of service.